SECOND SECTION

CASE OF LÁSZLÓ KÁROLY v. HUNGARY (No. 2)

(Application no. 50218/08)

JUDGMENT

STRASBOURG

12 February 2013

This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.

In the case of László Károly v. Hungary (no. 2),
The European Court of Human Rights (Second Section), sitting as a Chamber composed of:
	Guido Raimondi, President,
	Danutė Jočienė,
	Dragoljub Popović,
	András Sajó,
	Işıl Karakaş,
	Paulo Pinto de Albuquerque,
	Helen Keller, judges,
and Stanley Naismith, Section Registrar,
Having deliberated in private on 22 January 2013,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1.  The case originated in an application (no. 50218/08) against the Republic of Hungary lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Hungarian national, Mr László Károly (“the applicant”), on 30 September 2008.
2.  The applicant was represented by Mr R. Garay, a lawyer practising in Budapest. The Hungarian Government (“the Government”) were represented Mr Z. Tallódi, Agent, Ministry of Public Administration and Justice.
3.  The applicant alleged that he had been ill-treated by the police.
4.  On 16 March 2011 the application was communicated to the Government. It was also decided to rule on the admissibility and merits of the application at the same time (Article 29 § 1).
THE FACTS
I.  THE CIRCUMSTANCES OF THE CASE
5.  The applicant was born in 1950 and lives in Budapest.
6.  On 11 September 2000, at about 7 p.m., the applicant became involved in an animated dispute, of unclear background, with four plain-clothed police officers. After certain disputed incidents, three of them handcuffed him, banged his head against the bonnet of his car and then started to kick him. Subsequently he was committed to the Budapest VIII District Police Department, where he alleges his beating continued; Sergeant P. also insulted him verbally. Thereupon he was locked up in a ward for several hours; later on he was taken to Honvéd Hospital for a medical check-up. The Department of Traumatology established that he had the following injuries: bruises on the back of the head and on both sides of the chest; multiple suffusions on the back; contusions of the renal region on both sides; contusion around the spleen.
7.  The next day the applicant filed a criminal complaint against the police officers involved. On 30 June 2003 the Budapest Investigation Office discontinued the investigation. Relying on the opinion of forensic expert Dr M., the Office was satisfied that the lesions sustained by the applicant did not prove that he had been ill-treated.
8.  Simultaneously, criminal proceedings were initiated against the applicant on charges of drunken driving and violence against an official. However, on 28 April 2005 he was acquitted.
9.  In the ill-treatment case, the applicant filed a motion for private prosecution. On 12 October 2006 the Székesfehérvár District Court acquitted the police officers. The court dismissed the opinions of three private medical experts supporting the applicant’s version of the events, and accepted the version of the accused police officers, according to which the car driven by the applicant on the night of the events had created a traffic obstacle, he had been drunk, refused to abide by the instructions of the police officers and insulted them, and the injuries he had sustained had been caused by lawful coercion.
10.  On 24 April 2008 the Győr Court of Appeal dismissed the applicant’s appeal, arguing that the police measure was necessary and proportionate. It held inter alia as follows:
“... [T]he private substitute prosecutor’s statement of serious and lasting ill-treatment could not be verified by any of the experts. They all, however, stated that the injuries [sustained] could result from the applicant’s resistance to the coercive measure and the fact that he had need to be forced down on the ground.”
11.  In the context of the incident, the applicant also brought an official liability action against the Budapest Police Department, the Attorney General’s Office and other respondents.
On 28 January 2008 the Budapest Regional Court dismissed the claim. On appeal, on 18 November 2008 the Budapest Court of Appeal reversed this judgment and ordered each of the two main respondents to pay the applicant 500,000 Hungarian forints as compensation for having unlawfully prosecuted him for drunken driving and for violence against an official. Without addressing the issue of the alleged police brutality, the Court of Appeal established that there had been irregularities concerning the measuring of the applicant’s level of blood alcohol, noted that it had not been sufficiently clarified if he had been in the act of driving at all, and found that his conduct had not been proven to have physically countered the police measure in question.
On 29 March 2010 the Supreme Court upheld this judgment.
THE LAW
I.  ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
12.  The applicant complained that the brutality of the police measure applied during his apprehension amounted to inhuman treatment in breach of Article 3 of the Convention. He also relied on Articles 5, 6 and 13 of the Convention, without developing these complaints.
The Court considers that the application falls to be examined under Article 3 alone, which reads as follows:
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
13.  The Government contested that argument.
A.  Admissibility
14.  The Court notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.
B.  Merits
15.  The Government submitted that the case had been adequately and thoroughly examined in two different court proceedings. In consequence of comprehensive taking of evidence, the Székesfehérvár District Court had acquitted the applicant of drunken driving and violence against an official, while the Budapest Regional Court had also acquitted the police officers involved of the applicant’s charges. For the Government, it followed from this that the applicant’s version of events was not supported by evidence beyond any doubt. The Government noted that the applicant had admitted to having had a quarrel with the police officers, been drunk and refused to identify himself. This had served as a legitimate ground for the police action. Moreover, it had not been contested that the applicant had, in a heated situation, showed resistance which could be subdued only with physical force. However, the injuries outlined in the medical report drawn up right after the impugned police action did not support the applicant’s allegations of lasting and serious ill-treatment. Maintaining that the police action had been necessary and proportionate, the Government concluded that the injuries caused by the coercion used against the applicant could not have attained the level necessary for finding a violation of Article 3 of the Convention.
16.  The applicant argued that in view of the outcome of the official liability case (see paragraph 11 above) it was proven that the police measure in question had been unjustified and that the applicant’s alleged violent resistance could not have necessitated the use of excessive force. He also maintained that in the opinion of independent experts the injuries suffered could not be explained by a simple handcuffing exercise.
17.  The Court reiterates that Article 3 of the Convention, as the Court has observed on many occasions, enshrines one of the fundamental values of democratic society. Even in the most difficult of circumstances, such as the fight against terrorism or crime, the Convention prohibits in absolute terms torture or inhuman or degrading treatment or punishment. Unlike most of the substantive clauses of the Convention and of its Protocols, Article 3 makes no provision for exceptions and no derogation from it is permissible under Article 15 even in the event of a public emergency threatening the life of the nation.
The Court recalls that ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3. The assessment of this minimum is relative: it depends on all the circumstances of the case, such as the duration of the treatment, its physical and/or mental effects and, in some cases, the sex, age and state of health of the victim. In respect of a person deprived of his liberty, recourse to physical force which has not been made strictly necessary by his own conduct diminishes human dignity and is in principle an infringement of the right set forth in Article 3 (see, among many authorities, Tekin v. Turkey, 9 June 1998, §§ 52 and 53, Reports of Judgments and Decisions 1998–IV).
18.  The Court notes that as a result of the disputed police intervention, the applicant suffered bruises on the back of the head and on both sides of the chest; multiple suffusions on the back; contusions of the renal region on both sides; and contusion around the spleen (see paragraph 6 above).
19.  The Court considers that the injuries suffered by the applicant were sufficiently serious to amount to inhuman treatment within the scope of Article 3.
It remains to be considered whether the State should be held responsible under Article 3 for these injuries.
20.  In view of the findings of the domestic courts in the official liability case (see paragraph 11 above) according to which the applicant’s behaviour had not warranted the police’s use of force, the Court is not persuaded by the Government’s arguments designed to justify the authorities on this basis (see paragraph 15 above). Indeed, since it has been established by the Court of Appeal that his conduct cannot be taken to have physically countered the police measure in question – the very lawfulness of which was also open to doubt – the Court cannot but conclude that the use of force, resulting in the applicant’s injuries and suffering, amounted to inhuman treatment for which the State bore responsibility.
21.  The foregoing considerations are sufficient to enable the Court to conclude that there has been a violation of Article 3 of the Convention.
II.  APPLICATION OF ARTICLE 41 OF THE CONVENTION
22.  Article 41 of the Convention provides:
“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”
A.  Damage
23.  The applicant claimed an unspecified, “large” amount of money in respect of non-pecuniary damage.
24.  The Government contested this claim.
25.  The Court considers that the applicant must have suffered some non-pecuniary damage and awards him 5,000 euros (EUR) under this head.
B.  Costs and expenses
26.  The applicant also claimed EUR 25,000 for the costs and expenses incurred before the domestic courts and EUR 7,000 for those incurred before the Court.
27.  The Government contested these claims.
28.  According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 3,000 covering costs under all heads.
C.  Default interest
29.  The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
1.  Declares the application admissible;

2.  Holds that there has been a violation of Article 3 of the Convention;

3.  Holds
(a)  that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:
(i)  EUR 5,000 (five thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;
(ii)  EUR 3,000 (three thousand euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses;
(b)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

4.  Dismisses the remainder of the applicant’s claim for just satisfaction.
Done in English, and notified in writing on 12 February 2013, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
	Stanley Naismith	Guido Raimondi
	Registrar	President